The Defence of Act of State in Relation to Protectorates
| Date | 01 March 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00704.x |
| Published date | 01 March 1963 |
THE DEFENCE
OF
ACT
OF
STATE
IN
RELATION TO PROTECTORATES
THE term
“
act of state
”
has various distinct meanings
I;
this
article is, however, concerned with
it
solely
in
the narrow sense of
an act done
on
behalf of the Crown
in
respect of which
no
action
will lie, although,
if
done by anyone else,
it
would have been
tortious. The present law has
as its basis a well-known trilogy of cases,
Buron
v.
Denman,2
Walker
v.
Baird
and
Johnstone
v.
Pedlar,‘
the effect of which
may be stated as follows: an act done against a person not within
Her Majesty’s allegiance
or
against such person’s property either
with the prior authorisation of the Crown
or
its subsequent ratifica-
tion is an act of state, which fact,
if
pleaded, will oust the
juris-
diction of any of Her Majesty’s
c~urts.~
What redress there may
be must be sought at
a
diplomatic level.
There cannot, by definition, be an
act
of state against one of
Her Majesty’s own subjects.e This obtains wherever he may be
as
allegiance follows the person of the subject.
Nor
can there be
an
act of state against any person who is within Her Majesty’s domin-
ions with the exception of an alien enemy, for an alien friend within
the realm owes local allegiance at least while there and is tempor-
arily in the position of a British subject.?
Which acts fall within its scope?
1
McNair,
International
Law
Opinions,
Vol.
I,
pp.
111-117;
Wade
(1934)
15
*
(1848) 2
Ex.
167.
3
[1892]
A.C.
491.
4
[1921] 2
A.C.
262.
5
See generally Moore,
Act
of
State
in
English
Law
and Wade in
(1934) 15
B.Y.I.L.
98.
For the position in criminal law
see
Stephen,
A
History
of
the
Criminal
Law,
Vol.
II,
p.
61.
It
is interesting to note the Opinion of
Webster and Clarke dated July
16, 1890
in
P.O.
Confidential
6113;
they con-
fidently advised that ratification by Her Majesty’s Government of the defen-
dant’s action in closing the lobster factories in Newfoundland belonging to
the plaintiff British subject would be a defence to any proceedings taken
against him. The Privy Council
hf!d
that propsitioy, to be untenable. Its
decision stands with those in the cases at the time of
John Wilkes as denying the Crown arbitrary rights against a subject.
7
Calain’s
Case
(1608) 7
Co.Rep.
la;
Johnstone
v.
Pedlar
[1921] 2
A.C.
262;
Kuchenmeister
V.
Home Office
[1958]
1
Q.B.
496;
R.
V.
Goaernor
of
Brirton
Prism,
ez
p.
Soblen
[1962] 3
W.L.R.
1154
at
p.
U75
and
p.
1176,
though
cf.
Musgroae
v.
Chn
Teeong Toy
[1891]
A.C.
272
and note
Moore,
Act
of
State
in English
Law,
pp.
95-99.
See also O’Sullivan in
Re8 Judicatae,
Vol.
rV,
p.
245.
The question whether act
of
state
is
a good defence
to
an action
brought by an alien abroad in respect
of
a
tort
against goods within the realm
wa$
raised
in
Commmcial
and Estates Company
of
Egypt
v.
Board
of
Trade
[1925]
1
K.B. 271
but has never been decided. The changes brought about by
the Crown Proceedings Act,
1947,
appear
not
to have affected the position as
regards acts
of
state: McNair,
Opinions,
Vol.
I,
pp.
116-117.
B.Y.I.L.
98.
6
Walker
v.
Baird [1892]
A.C.
491.
general warrant
138
MAWE
1963
TEE DEFENCE
OF
ACT
OF
STATE
189
There are thus three essential elements of an act of state:
(1)
that the person suffering injury is one who does not owe alle-
giance to the Crown;
(2)
that the place where the act is done is not within Her Majesty’s
dominions (unless the person wronged be an alien enemy);
(8)
that the act is done
on
the orders
or
with the prior authority of
the Crown
or
subsequently is ratified by
it.
A
British protected person is not
a
British subject and a protec-
torate is not within Her Majesty’s dominions. Logically, therkfore,
an act done by the Crown against such
a
person in such
a
place
would constitute an act of state and
no
redress could be obtained
from the courts. Indeed the judgments in
Sekgome’s
case and
Sobhuza
I1
v.
Miller
afford authority for the view that this is the
position and,
on
the strength
of
dicta in these cases (the decisions
are on other grounds), text-writers state the law to be such.’O
If
this be
so,
the administration in a protectorate may act in
a
wholly arbitrary fashion should it
so
choose and any British
pro-
tected person suffering as a result will have
no
redress at all since
theie
is
naturally
no
question of diplomatic exertions
on
his behalf.
That there is a body of law apparently regulating the actions of the
administration will not matter-the plea
of
act of state will obviate
the necessity to justify the behaviour in law.” The general rules
mentioned above require close examination specifically in relation
to
protectorates to see whether the apparent theoretical position is
still valid and the analysis may conveniently be made under two
main heads
:
1.
The person injured;
2.
The place where the injury is done.
A
plaintiff British protected person will succeed
in
defeating the
Crown’s
defence of act of state
if
he can show either that he is
within the allegiance
or
that the place where the injury was caused
to
him
is
within Her Majesty’s dominions.
1.
THE
PERSON
INJURED
Allegiance
It
has been indicated that the defence of act of state
will
not avail
against any person who can show that he is
“
within the alle-
giance.” The meaning of this phrase has been little discussed but
it seems clear that
it
is
not the allegiance of feudalism. Each man
The Xing
v.
The
Earl
of
&ewe,
ex
p.
Sekgome
[lQlO]
2
K.B.
576.
P
rim61
A.C.
518.
10
&alsb;ry, 3rd ed.,
Vol.
6, p. 645; Dicey,
Conflict
of
Laws,
7th ed.,
p.
163:
Wade and Phillips,
Constitutional
Law,
6th ed., p. 401;
Hood
Phillips,
Con-
8titutionaZ Law,
2nd ed.,
p.
646.
11
The act
of
state defence would presumably have been open
to
the
Crown,
if
it
had
so
chosen, had the legality
of
the detention
of
the applicant in
Ez
p.
Mvenya
[1960]
1
Q.B.
241
eventually come
to
be investigated and had he
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